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EFF criticizes police conduct in Gizmodo raid

updated 09:35 pm EDT, Mon April 26, 2010

by MacNN Staff

Foundation cites journalists rights in CA

The Electronic Frontier Foundation has criticized California's Rapid Enforcement Allied Computer Team for raiding the home of Gizmodo editor Jason Chen. Police last week served a search warrant at the residence, seizing Chen's computers and documents as part of an investigation into the saga surrounding the leaked iPhone prototype.

EFF civil liberties director Jennifer Granick argues that the warrant may violate certain protections afforded to Chen as a journalist, according to a Wired report. Granick claims that federal law prohibits the government from seizing materials that are used by journalists for the purpose of communicating to the public, even if the individual committed a crime.

Journalists are not entirely immune to legal scrutiny, although investigators must first obtain a subpoena to give time to challenge the request. The regulations have been put in place to protect against forcing journalists to disclose sources or sensitive information.

"California law is crystal clear that bloggers are journalists, too," Granick said.

The REACT team reportedly seized four computers, two servers, an iPhone, digital cameras and banking account records. Ironically, the task force also took an e-mail printout from a Gawker associate who wrote to Chen about the Californian shield law and protection against warrants served on journalists.

Granick also suggests that REACT utilized a warrant that was overly broad, enabling officers to seize all of Chen's hardware instead of materials determined to be directly related to the iPhone investigation.

Giz was plain stupid in this case and now they're paying for it. They knew it belonged to Apple, and they knew the circumstances that the bar patron acquired the device to be shaky at best. Why didn't Giz contact Apple before they bought the device? Why didn't they assist the bar patron with his "effort" to return it?

Heck, if it was me I would have driven it over to 1 Infinite Loop and handed it to the receptionist at the main front desk.

I guess that was more difficult than contacting Giz and getting $5,000.

For any suspected criminal activity that even remotely might involve a high tech piece of hardware, whether it's a set of servers and LAN or a smart phone, REACT and it's associated 'high tech' investigators write up a search warrant affidavit in its scariest form, find a judge with a rubber stamp and confiscate the entire system. Then they'll slowly sift through the material, taking months in some cases, create their encase portfolio, then let the prosecution proceed. Meanwhile the 'suspect' is dead in the water as far as the tools he needs to make a living. Someone should go by the court clerk's office in San Mateo County and get a copy of the affidavit in support of the search warrant. It'd be interesting to see whose Apple fingerprints are on it. The affidavit's a public document and is supposed to be filed within 72 hours of execution. They rarely are.

The analogy is this:
1. A journalist commits MURDER with the help of accomplices.

2. The journalist writes about the murder for a website that has millions of readers. The journalist even goes so far as to post photos of the dead victim, slicing open the victim so you can see the entrails.

3. The police are notified about the crime.

4. The police obtain a search warrant to search and seize the journalists home and to seize the computer equipment for evidence regarding the crime.

I don't think anyone in his or her right mind is going to complain about the police action. They want evidence and a trial.

Sorry, but the EFF is wrong.

The Journalist had the first amendment right to publish his article.

But the journalist does not have the right to commit a crime.

Like the Miranda warning, the article can be used against him in a court of law. The article was a confession to the crime.

In the case of Gizmodo, the crimes are:

1. Grand Theft (that iPhone prototype is worth millions of dollars - more than the $5,000 they paid).

2. Breaking California's Trade Secrets law.

Gizmodo stupidly failed to:
1. return the iPhone prototype upon receipt.
2. paid $5,000 for it.
3. took the iPhone prototype to New York (obviously, this is not where Apple is located)
4. took the iPhone prototype apart and described the contents.
5. confessed about their crime to the world.

If they damaged the prototype in taking it apart, that's another crime: vandalism.

EFF has some points - on occasion. However, in this case, they are out of line.

I no longer have GIZMODO in my bookmarks.
Enabling a criminal gives them permission to commit the crime again - or a greater crime.
To profess "freedom of the press" as a justification to GRAND THEFT and divulging "trade secret" information is hogwash at its easiest and serious felonies at its best (for Apple).

Why GRAND THEFT? I know how much money goes into the development of a product. This is a prototype that is not in public domain use or released to the public - even announced as a product, so this is a highly valuable item. As an example, if you were able to purloin the next generation of the BMW X7 (not announced yet) for $5000 and you were able to do a complete teardown and then show pictures to the world, what is the value of damages of your activities and public release to BMW. Just because someone has a ingrown hair over Apple's success and wants to harm them or embarrass them, it does not justify illegal activity. So how much is an early release of the top selling smartphone in the world worth?

Yup, GRAND THEFT.

GIZMODO may have gotten a scoop but they are going to be scooping da p*** on this little kerfuffle. Dipsticks.

Cheers from the Land Downunder - where if you want to live here all you go to do is show up on a crowded boat and plead political asylum. A new boatload arrives almost every day!

Give me a break .. Gizmodo are wrong wrong wrong ... lock them up. They purchased property they full well knew was not theirs, was obviously the property of Apple. You pay $5,000 for a phone you know damn well it is stolen or at least not rightfully the sellers to sell.

Go to Jail Gizmodo

It is not as if they are producing REAL journalism .. if thats what you want to call it

ok, gizmodo was wrong. but the police raid on apple's prod isnt just right. siezing computers, bank statements ? this stinks of a police state. thanks to eff, the police suddenly thought they looked like the underlings from cupertino. this stinks all over of a police state in the making. police raid at the behest of a corporation !

This is really a case of damned if they do, damned if they don't - this has been all over the major international news networks - so either the police had to ignore a crime, or leave it to Apple to bring a suit (which they don't seem interested in doing - and I think Gizmodo banked on them not wanting to do so).

I have some slight sympathy for the EFF position - in that if this had been evidence that proved wrong-doing in a corporation, I would support any newspaper that paid a source for stolen evidence - i.e. the general principle that journalists do sometimes need to go outside the law to get important information needs to be protected, otherwise corporations and powerful individuals can suppress too much.

(Watergate, big Tobacco, Jonathan 'liar' Aitken, blah blah blah)

But in this exact case, the ends did not in any way justify the means - it's getting closer to tabloid privacy invasion, where they claim the 'public interest' defence means 'anything the public is interested in'.

And in several of those cases, the papers did end up going to court, anyway - they were prepared to face potential criminal charges in order to break the story, or protect their sources. I think that has to be the measure of importance.

A guy finds a phone in a bar, doesn't tell the bartender or bar owner about it, just takes it home and keeps it for a few weeks. He has committed a theft. He tried to call the manufacturer of the phone. What does he think they are going to do? Are they supposed to trace the serial number to the carrier they sold the phone to and then the carrier will locate the person they sold the phone to in order to return it to its rightful owner? Are you kidding me??? Gizmodo is complicit with the finder in the theft when they bought the stolen goods. This is an easy one.

A guy finds a phone in a bar, doesn't tell the bartender or bar owner about it, just takes it home and keeps it for a few weeks. He has committed a theft. He tried to call the manufacturer of the phone. What does he think they are going to do? Are they supposed to trace the serial number to the carrier they sold the phone to and then the carrier will locate the person they sold the phone to in order to return it to its rightful owner? Are you kidding me??? Gizmodo is complicit with the finder in the theft when they bought the stolen goods. This is an easy one.

I am seeing a lot of mixing blame here. Remember that it was NOT Gizmodo who found, took, and sold the phone. It was the guy who was given the lost phone, who had waited and asked around for the owner; not to mention the time he took out of day to call and report the lost phone to Apple (who ignored the call completely).

There is way more people at fault here than Gizmodo. Should they have bought the phone? Probably not. Should that guy have sold it to Gizmodo? Maybe not, but then where would it be now? Should Apple customer service listened to the caller trying to return it? Probably. The guy asked for Gray by name. Obviously if someone calls and reports a lost phone, and asks for the person by name, it's most likely not a hoax.

So in that light, if any blame is to be pointed, it should be at the guy who took the phone home with him. He committed the "murder" and/or GRAND THEFT, and Gizmodo, Apple Customer Service, and the drunk guy in the bar who handed him the phone are all accomplices. Right?

I guess my big gripe here is why should Gizmodo get all the heat for purchasing a device from a random guy that claims he has got a new iphone prototype, however it doesn't work, and looks like an iphone 3gs? I say they were just as curious about it as all of us are who are reading all the coverage on this.

I find it hard to believe the rights people are willing to give up. Is it really ok for the law enforcement officials to break the law to try and obtain evidence? The law was written to prevent the harassment of journalists and to prevent witch hunts.

The law also allows the law enforcement officials to obtain the evidence they need by asking for it and giving the journalist time to fight the order but they will have to turn it over if the court determines they have broken or likely broke the law. No where does the law say that a journalist can get away from breaking the law but it does say that there is a procedure that has to be used to prevent the harassment of the news media which may in turn prevent the real news from being reported because of the fear and uncertainty of what might happen. We are not a Venezuela where Chavez can shut down news operations, jail people, and create violence to prevent the news from speaking the truth.

I bet the DA will be giving back the equipment and fixing the door and then ask for the information as required by law. They can still get what they need but it is so much less dramatic for the press than the bursting into the house and taking everything they can lay their hands on. By the way, it is also against the penal code to write a search warrant in such a manner that it is not clear what they are looking for, fishing for evidence is not allowed.

Think before you just say it is ok to do anything to someone or to trash their rights because you THINK they may be guilty. The entire story is not out yet and until all the evidence is in we do not know how this all really came about, we only have pieces. It does sound like someone purchased stolen property but we do not know if the search for the owner was reasonable under the LAW. It will come out and the truth will be known unless Apple has had its fun and asks the dogs to back off.

amazing that no one seems to care that, in California, apparenlty, the tech industry has its own police force. Who knew.

And I always find it amazing how many people rail against the likes of those right-wing organizations such as the EFF or the ACLU, when it is these organizations that are the ones that are trying to make sure the government doesn't overstep their bounds in terms of the US and State constitutions.

I guess AppleInsider and MacNN should be next to be taken to task, for they make the horrendous call of publishing info on Apple's unreleased prototypes and such. We don't need any real cause or justification. For even if they claim they got from 'sources', that could just be a cover for someone who stole a device and showed it to them. Ergo, go get 'em!

Apple uber alles!

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